Is the human embryo a person like the others?

On Friday June 24, 2022, the Supreme Court of the United States reversed the Roe vs Wade judgment, which recognized since 1973 the right toabortion in the USA.

At the heart of the debates is the question of the status of theembryo and fetus.

The opportunity to take stock of the status attributed to them both in bioethical debates and by the legislator in our country.

Distinguish between “persons” and “things”

Many aspects of French law derive from Roman law. It is to the latter in particular that we owe the existence of two legal statuses: that of people and that of things. For Roman law, the beings inhabiting the sublunary world are divided into these two categories. Things generally have an owner, they can be bought and sold, used or destroyed by whoever owns them. This is not the case for persons who, moreover, are subjects of law. Adult human beings are paradigmatic examples of people.

The question of the legal status of certain beings is sometimes more controversial. This is the case for animals, for example: an Argentinian court recently awarded a female orangutan living in the zoo a status of “non-human person”. But living beings are not the only ones concerned, since in 2017, New Zealand granted the status of person at the Whanganui River, thereby ensuring protection and rights. A few days later, India did the same with the Ganges and the Yamuna.

On the ethical level, the notion of moral status plays a role analogous to that of legal status for the law. To have a moral status is to possess a value that matters morally and which is the source of moral duties.

Traditionally, it is the status of person that is considered the highest moral status: people have a particular dignity, it is often specified. Why that ? Because the person is a being endowed with reason we repeat from Boethius (V^e century). We find this affirmation in the philosophers who have marked Western moral thought, from Thomas Aquinas, the inspiration of the Catholic tradition to Emmanuel Kant, the most quoted philosopher in modern and contemporary thought, via John Locke, one of the fathers of political liberalism.

Kant clarifies that the person is ” a being entirely different, in rank and dignity, from things like [êtres] devoid of reason, which one can dispose of as one pleases. » Anthropology from a pragmatic point of view (1984), p. 17

In this conception, it immediately appears that the embryo is not a person, because one cannot say that he is endowed with reason. However, “being endowed with reason” is a somewhat vagueand it is necessary to specify which rational capacities count.

The issue of moral status

For a long time in the West, the determining criterion was the moment of animation, that is to say the moment when one imagined that the soul entered the human body. These debates are not new: for Basil of Caesarea, the soul entered the body at conception. Thomas Aquinas considered that this happened between the 40^e and the 80^e day of the gestationwhile according to Augustine of Hippo, it was at the first breath.

Much later, Kant, considering that the relevant capacity is the self-consciousnesswill consider that the child becomes a person around the age of 2, when he no longer talks about himself at the 3^e person, but say “I”. Closer to home, contemporary bioethicist Tristram Engelhardt believes that what matters is the possibility of to blame or to praise and to be the object of praise or blame. In short, to have a moral conscience. These are abilities that neither an embryo nor a fetus do not possess and cannot possess.

Certainly, for philosophers, not being a person does not imply that one is a thing, because ethics is not bound to adopt the dichotomy of law. But it follows that the embryo and the fetus do not benefit from the protection and moral rights of persons. Therefore, when their interests conflict with those of people, they cannot prevail. This is how it is possible to morally justify abortion and research on the embryoseven if they end in their destruction.

However, as genuine interests, the interests of the embryo deserve consideration and some protection – contrary to what Kant said, there are good reasons to think that the embryos are not things which you can dispose of as you wish “.

The embryo, a potential person

Among the good reasons for opposing Kant is the fact that embryos and fetuses are potential people. A potential person is a being who will become a person when he has acquired the constitutive capacities of the person. In its current state, therefore, a potential person is not a person, just as a potential president of France — a candidate for the presidential election — is not president of France.

The National Consultative Ethics Committee (CCNE) supported this position on the basis of a legal argument: as the child becomes a person to the birthbefore this event, there is a being who will become a person but is not yet one, in short, he is a potential person. On the philosophical level, the same reasoning is valid, except that there is no consensus on a criterion which would be birth.

When does the embryo become an individual?

This indeterminacy means that, in a practice that seeks to draw inspiration from philosophical positions, we often opt for a restrictive solution: important human interests must be at stake for the destruction of a fetus to be allowed (abortion ) or the instrumentalization of embryos (research). In addition, an early time limit is placed, in order to avoid harming a human being who, with his development, will look more and more like a person.

So theAbortion (abortion) is limited to 14 weeks of pregnancy (I’medical termination of pregnancyor IMG, is possible longer, but more serious reasons are needed) and research on the embryo is limited in some countries to the 14^e day. This 14-day limit was introduced in France by the 2021 bioethics law (Article L. 2151-5:IV of the Public Health Code).

This last limit is interesting. Indeed, it marks the end of the totipotentiality of the embryo (during the first divisions of the egg, the cells can transform into any cell type, to give an entire organism; this ability disappears quickly) as well as the appearance of the primitive streak, which defines the plane of bilateral symmetry of the embryo. Before these two events, if an embryo is cut in half, it divides to give Twins quite alive. Then he dies. Their marked occurrence therefore makes a collection of cells a true individual.

To be a true individual is not yet to be a person. However, one cannot be a person without being an individual, since a person is an individual endowed with reason.

The argument from rationality

It remains to wonder why certain currents – in France and in Europe, it is above all a question of Catholicism – consider that the embryo is a person from the moment of fertilization. Basil of Caesarea had affirmed this, but he was referring to the entry of the soul into the body, an unobservable event even for those who believe in its reality. What if we adopt the criterion of the appearance of rationality?

The argument presented so far militates strongly against this assertion. Its supporters, however, point out that a being can possess reason without our noticing it, because it does not have the means to manifest it. According to them, this would be the condition of human embryos. Indeed, they already have everything it takes to be a person – their genome human is constituted – and it is enough to wait for what is there, in the state latent, wakes up. When I sleep, I continue to be a person.

This argument has a certain apparent solidity, even if there are good reasons to think that it puts in the genome of the embryo many things which are not there (yet). It is nevertheless based on a conception which makes of all potentiality a capacity, in short, which confuses the two notions.

An acorn is a potential oak tree, but it does not have the abilities as an acorn that an oak tree has; it will only become an oak if it is planted and watered. More strikingly, though less relevantly: the sand is potential glass, but it does not have the same properties at all; in particular, the sand is not fragile, it does not have the capacity to break when it is struck. It only gains this ability if it is heated. In the same way, a human embryo does not possess the capacities that a person possesses: it is not yet endowed with reason. He is certainly a potential person, but he is not a person.